Since all of the judges on Trump’s list were highly qualified and had conservative track records, most criticism of particular candidates took place behind the scenes. Everyone was alert to the problem of political primaries, in which the eventual nominee emerges bloodied with another battle ahead of him. All the candidates on the list were at least acceptable, and no one wanted to weaken the eventual nominee’s prospects for confirmation, so the most intense debates were kept behind the scenes. Nevertheless, some individuals and organizations were speaking out, and a few were aiming their fire directly at Kavanaugh.
Conservative media praised Kavanaugh for his approach to administrative law, the body of rules that govern the multitude of federal regulatory and administrative agencies. The average citizen hears little about this arcane and rarely glamorous field of law, but in recent decades, as Congress has delegated to the bureaucracy the real work of governing the United States, administrative law has become enormously consequential for Americans’ rights and freedoms.
Many worried, however, that Kavanaugh had hidden in the tall grass by avoiding controversial social-policy issues. His recent handling of the question of whether a teenager caught entering the United States illegally had a constitutional right to an abortion had not inspired confidence among pro-lifers. His opponents circulated a summary paper criticizing him for seeking “a compromise that would allow [the girl] to obtain her abortion” and for refusing “to take a stand” with another judge who questioned whether such a person even had a constitutional right to abortion. He was also criticized for a dissent that some argued had presumed a compelling government interest in facilitating access to contraception. His decisions on religious liberty, it was said, were not sufficiently bold at a time of increasing encroachment by the government.19
Conservatives worried about more than Kavanaugh’s commitments on social issues. They charged that a dissent from 2011, in which he discussed how a mandate to purchase insurance could pass constitutional muster, amounted to a “roadmap for saving Obamacare.”20
The defining feature of his jurisprudence, critics said, was “avoidance.” Principles were less important to him than his “reputation.” And “nothing” suggested he would “find the courage to embrace conservative principles” on the Supreme Court. There was “no reason to risk it,” an opposition document warned. “There’s a difference between a home run and a grand slam,” opined one writer in National Review.21 These conservatives were not fully opposed to Kavanaugh’s nomination, but having been burned many times before, they feared that he was another establishment Republican who would swing to the left once he was on the Court.
Even people within the White House were concerned, but as they dug deeper into his record, they believed he viewed his role on the circuit court as writing for Justice Kennedy. Kavanaugh understood how Kennedy thought, and even when he disagreed with him, he admired him. He always carried a pocket Constitution signed by Kennedy. Kavanaugh tried to craft a solid, constitutionally correct result that Kennedy would adopt rather than being swayed by the liberal bloc on the court.
Others close to the process were swayed by the weight of his judicial record. No conservative appeals court judge—including even then-Judge Gorsuch—had as many opinions on significant and controversial questions as Kavanaugh, from his defense of First Amendment protections for political speech, to his bold Second Amendment dissent that had garnered repeated citations from Thomas and Scalia, to his pathbreaking separation of powers cases, which had pointed out constitutional infirmities in the structure of several administrative agencies.
Each time a piece expressing concerns was published, an army of former clerks and other surrogates rose in Kavanaugh’s defense, sometimes within minutes. Clerks generally serve a one-year term with a judge after law school, assisting in the research and drafting of judicial opinions. They work closely with their judge, almost as apprentices, and it’s not unusual for them to form lifelong bonds. Clerkships are like being adopted into a large extended family with one patriarch or matriarch at the head. Some of Kavanaugh’s former clerks took leave from their jobs or did double duty to participate in the effort to secure his nomination. Roman Martinez, a former clerk turned Supreme Court litigator, was abroad on a family vacation and worked remotely and across five time zones. The same day the vacancy was announced, Travis Lenkner, who had also clerked for Justice Kennedy, packed his bags and hopped on a plane from Chicago, texting the judge that he was on his way to help.
Kavanaugh’s chambers in the E. Barrett Prettyman U.S. Courthouse on Constitution Avenue, near the Capitol, comprised a few offices for the judge and his staff and a small conference room. This became the cramped headquarters of the Kavanaugh “campaign.” Being in Washington was a huge advantage, but with spotty cell phone and internet service and no televisions, the offices themselves made a poor communications nerve center. The air-conditioning was shut off at six p.m., leaving the offices stiflingly hot in the D.C. summer evenings. And because the volunteers were not employees of the court, none of them had badged access to the courthouse. The judge’s capable executive assistant, Eva Roney, had to stay there as late as they did. Apart from the difficulty of getting in and out of the building, the neighborhood had few restaurants open in the evening, so even getting dinner was a big production.
Beyond the team of former clerks working in chambers were dozens volunteering as they could from across the country. One collected news clips and tweets from prominent figures, arranging them into what needed to be seen immediately, hourly, and daily and then distributing them to the team, a contribution that was essential for responding to critiques from fellow conservatives.
Some former clerks, hoping that their judge would be added to the White House list and confident that he would be a leading contender, had begun preparing for a Supreme Court vacancy at least a year earlier. That work, which accelerated as the 2017–2018 term drew to an end, included reading through Kavanaugh’s hundreds of opinions, sorting them by topic—gun rights, free speech, search and seizure, the administrative state, and so on—and preparing excerpts from significant cases, contextualizing them for their importance. These were invaluable aids for surrogates talking about Kavanaugh in the media.
The Kavanaugh team emphasized his influence on the court, noting his skill at strategically framing an opinion to convince other judges on the same case to take a more conservative position than they might otherwise have done. It was important that his persuasive techniques be appreciated for their effectiveness rather than misunderstood as a sign of weak convictions. They also wanted to make sure people remembered Kavanaugh’s long record of public service prior to being a judge. He had taken on a politically risky role in the independent counsel Kenneth Starr’s “Whitewater” investigation of Bill and Hillary Clinton’s Arkansas land deals. And he had served with distinction in the frequently besieged Bush White House. Unlike some lawyers angling for judicial office, he had not built his career by avoiding conflict and keeping his powder dry. Brett Kavanaugh was not timid.
The former clerks spoke privately with persons of influence and lobbied publicly as well. Sarah Pitlyk, a litigator on issues of life and religious liberty, responded to criticisms about Kavanaugh’s jurisprudence by writing, “On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh. On these issues, as on so many others, he has fought for his principles and stood firm against pressure. He would do the same on the Supreme Court.”22